Empty feeling

ALISON KORN -- Special to Sun Media

, Last Updated: 7:56 AM ET

The "See You In" amateur athlete fund, as in See You In Torino, See You In Beijing and See You in Vancouver, may soon be seen again.

After 21/2 years of expensive legal debate, the charity called the Canadian Athletes Now Fund has won back its original name -- The See You In -- moniker from the Canadian Olympic Committee.

Wednesday's decision by the Federal Court quashed the COC claim to the trademarks and granted the charity's application for judicial review with costs.

"This is a great victory for our fund," said Jane Roos, executive director of the Canadian Athletes Now Fund, which was forced to re-brand when the case started.

"We won in the court but no one really wins here because it has been distracting and such a waste of energy having to win your own name back."

In its 10 years, the fund has helped more than 500 Canadian athletes in preparation for international summer and winter competitions.

It awards individual athlete grants of $6,000 and has raised in excess of $4 million.

The charity was notified in 2004 that the Canadian Olympic Committee had filed to adopt the brands See You In Torino, See You In Beijing, and See You In Vancouver.

Even though Roos had already applied to trademark the names a year earlier -- "a long, slow process'' -- the COC exercised its status as a "public authority'' under Section 9 of the Trademarks Act.

That section permitted it to request the Registrar of Trademarks publish the names as official COC marks based on previous "adoption and use" by the COC. (A public authority refers to any quasi-government controlled body; a 1982 court decision awarded the COC that status.)

When challenged, the COC had to provide evidence it had used the marks as it had represented and was unable.

"This case sets a precedent," said Roos' lawyer, Terry McManus, a business and intellectual property lawyer at Milton Geller LLP in Ottawa.

"The Court now requires the Registrar of Trademarks demand actual proof of adoption and use rather then taking an applicant's word for it."

In court, the COC produced three dozen "See You In" flashlight and pen kits as proof it had adopted and began using the brand names before it legally filed for the trademarks.

COC witness Lou Ragagnin, its chief operating officer, also stated employees and consultants had used the names in internal correspondence, e-mails and memoranda.

But when Ragagnin refused to provide proof, or indicate the number of promotional "See You In" items, judge J. Phelan concluded the COC had not demonstrated adoption and use.

"And I knew this all along, I think that was the most frustrating thing," said Roos. "I really knew in my heart we would win because I knew they weren't playing fair."

Roos' side did lose on its challenge to the COC's status as a public authority, and on its charge that the COC's protection of the Olympictrademarks as a licensee of the International Olympic Committee was a misuse of its status as a Canadian public authority.

"The trouble with this is we didn't destroy the COC's ability to use Section 9 to protect its marks, so it can turn around tomorrow and do the same thing to Jane," said McManus.

"Jane won and I don't think they're going to do anything further to her, but I'm disappointed in the fact that we didn't destroy their ability to do it again to her or anybody else. We won the battle but we're still vulnerable."

The COC has 30 days to decide any course of action.

"We want to have a good hard look at the judgment and have a chance to discuss what the implications are,'' said Dave Bedford, executive director of marketing and communications.

"All we've ever wanted to do, and continue to want to do, is protect our sponsors against other groups getting an association with the Olympic Games that they haven't acquired.

"When you have companies that are spending hundreds of millions of dollars to be a brand in the Olympic movement, and others do it at a much lower rate, it diminishes the value of the investment.''

Bedford said he didn't know how much the court case would cost the COC altogether. Roos has said her legal costs were $60,000, but now the COC has been ordered to re-pay her.


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